Sacramento DA candidate accuses rival of prosecutorial misconduct

Next year’s Sacramento County district attorney’s race already has taken a sharp-edged turn with one of the candidates accusing another of having committed prosecutorial misconduct in a trial six years ago.

Deputy District Attorney Anne Marie Schubert leveled the charge at a candidates’ forum Tuesday night against California Deputy Attorney General Maggy Krell, who denied the allegation.

The accusation stems from a 2007 trial in which Krell, in her closing arguments to a jury, sought to buttress her case by making reference to the defendant exercising his constitutional right to not testify. The U.S. Supreme Court ruled as far back as 1965 in Griffin v. California that it is unconstitutional for prosecutors to make any remarks to juries about defendants who don’t testify at their trials.

As a result of Krell’s error, the state’s 3rd District Court of Appeal overturned the conviction of Daniel Ray Maier, who had been found guilty of bribery, conspiracy and grand theft in pre-arranging the outcome of a 2006 harness race at the Cal Expo track in Sacramento.

Speaking at the forum sponsored by the Asian Pacific Islander American Public Affairs Association, Schubert said, “I have never in my career had a case reversed for prosecutorial misconduct. That’s an important question to ask. Has that ever occurred with any candidate in this room?”

Without naming names during the forum, Schubert said cases get reversed because “you made a rookie mistake that you never should have made. That’s what happens when you make mistakes.”

“It’s also important when you have a case reversed for prosecutorial misconduct that you report yourself to the (State) Bar,” Schubert added, citing the state Business and Professions Code, “because, yes, there should be consequences for that misconduct.”

Asked about it afterward, Schubert confirmed she was referring to Krell’s case against Maier. According to evidence at his trial, Maier – who has since been reinstated as a harness racing driver at Cal Expo – made $250 in trifecta bets on a race after paying another driver $1,200 to keep his horse out of the money.

“I think the voters need to be fully informed about the candidates, and review all the candidates on what has happened in the course of their career,” said Schubert, who has been endorsed by outgoing DA Jan Scully, as well as Sheriff Scott Jones. “My opponent has had a case reversed for misconduct. And that’s not something you should take lightly.”

A third candidate in the race, Todd Leras, also appeared at the forum.

In an interview, Krell acknowledged, “I should have done better on the closing argument in that case.” She said she “misspoke” by making reference to the defendant as “he,” after earlier having referred to “the defense” and its failure to address some of the issues at the trial.

Krell still insisted her error did not amount to misconduct. Research by The Bee on Wednesday found it to be decidedly murky legal territory.

Given the U.S. Supreme Court’s 1965 ruling, the question becomes whether a lawyer’s reference to a defendant’s lack of testimony at trial amounts to misconduct on its face. A 1983 1st District Court of Appeal case involving a California man named David Hernandez Rios, who was convicted of robbery, seems to equate a prosecutor’s trampling of the Fifth Amendment protection against self incrimination with misconduct.

“It was, as contended by Rios, prosecutorial misconduct,” the opinion said. The same case, however, also found the misconduct to be “harmless” and refused to reverse the conviction.

State Bar spokeswoman Laura Ernde, speaking in general terms, said in an email that convictions “reversed on appeal due to alleged prosecutorial misconduct” are “reportable to the State Bar.” She added, though, that “not every case of prosecutorial error is professional misconduct.”

McGeorge School of Law professor John E.B. Myers said Wednesday that the reversal of a conviction “does not mean that the prosecutor was acting unethically by any stretch of the imagination.”

“Prosecutors make mistakes, and if they are deliberately trying to mislead the jury or judge, that is one category of error,” Myers said. “It may be reversible error, but not unethical conduct.”

The author of the 3rd District opinion who reversed the conviction in the harness racing case gave Krell a pass.

“I recall the case as being one of inadvertent comment on a defendant’s failure to testify,” retired Justice Rick Sims said in a statement released through the Krell campaign. Sims, who has endorsed Krell and was a host at a fundraising reception for her, called it “a small error, although the jury would have heard the words that were spoken, not the prosecutor’s intent.”